JUDGMENT Arun Kumar Goel, J. :- This appeal was admitted on 13.7.1989 on the following substantial question of law. "1. Can the latest entries in revenue records be still presumed to be correct under the provisions of the H.P. Lad Revenue Act, when there is a conflict between earlier entries and latter entries and here is no material on record produced by the party placing reliance on the latter entries to show as to how the change occurred in the revenue records?" 2. Admitted facts of this case are as under :- One Shri Ram Sahal was occupancy tenant of the land which is subject matter of the suit out of which this appeal has arisen. He had two wives, namely, Mori and Nihatu, Mori was the plaintiff who had filed the suit against Rattan hand, Nanak Chand and Twarsu. They are the sons of Durga. This Durga was son in law of Ram Sahai and Nihatu as their daughter Basanti was married to him. Present appellant and defendants No.l to 3 are real sister and brothers. Appellant who claims to have been adopted by plaintiff Mori was ordered to be substituted in her place, on her application under order 22 rules 3 and 9 read with section 151 C.P.c. and Section 5 of the Limitation Act, vide order dated 1.11.200L 3. Further case of the plaintiff as set up was that Smt. Nihatu had since died and she had executed a will in favour of sons of Durga i.e. respondents No. 1 to 3. She also claimed that after the death of Nihatu, she became co-owner along with proforma defendants as well as defendants No. 1 to 3 upon whom share of Nihatu had devolved by virtue of Will. Entries showing defendants to be tenants under Mori were wrong and contrary to the factual position. She was in possession to the extent of her share. Moreover, a co-sharer cannot be tenant of other co-sharer and cannot have two status at the same time i.e. as a co-sharer, the other, as a tenant. These entries in the revenue record showing defendants No. 1 to 3 to be tenants under plaintiff and proforma defendant were wrong and inoperative to the extent of share of plaintiff and proforma defendants and be declared as such. 4. It was in this background that a decree for declaration was prayed. These entries in the revenue record showing defendants No. 1 to 3 to be tenants under plaintiff and proforma defendant were wrong and inoperative to the extent of share of plaintiff and proforma defendants and be declared as such. 4. It was in this background that a decree for declaration was prayed. It was further prayed that in case defendants were found to be in possession then a decree for joint possession be passed in her favour and proforma-defendants and against the defendants No. 1 to 3. 5. On the other hand, defendants contested the suit claiming themselves to be tenants since the time of their father Durga, who according to them was tenant under both Mori and Nihatu widows of Ram Sahal, (their maternal grand father). Their father was inducted as non-occupancy tenant and he used to pay rent. According to them, they were cultivating the land as owners. By was of preliminary objections, jurisdiction of Civil Court to entertain the suit, plaintiff having no cause of action to file the suit, it being barred by time, and also bad being for non-joinder of necessary parties were also set as defences to deny the claim of the plaintiff. In the replication, contents of the plaint were reasserted. Trial Court framed the following issues: 1. Whether the entries showing the defendants as tenants are wrong, as alleged? O.P.P. 2. Whether the defendants are tenant over the suit land as alleged? O.P.D. 3. Whether the court has got no jurisdiction as alleged? O.P.D. objected to. 4. Whether the plaintiff has got no cause of action? O.P.D. objected to. 5. Whether the suit is within limitation? O.P.P. 6. Whether the suit is bad for non-joinder of necessary parties? O.P.D. 7. Relief. 6. After conclusion of the trial, suit of the plaintiff was decreed against the defendants 1 to 3. They filed an appeal against the judgment and decree of the trial Court. It came up before the learned appellate court below. By means of the impugned judgment and decree passed by the first appellate court, the appeal was allowed and consequently the suit was dismissed. 7. Record of the second appeal shows that it was allowed on 1st May, 1997. Thereafter it was brought to the notice of the Court that on the date of the decree appellant Moru was dead. By means of the impugned judgment and decree passed by the first appellate court, the appeal was allowed and consequently the suit was dismissed. 7. Record of the second appeal shows that it was allowed on 1st May, 1997. Thereafter it was brought to the notice of the Court that on the date of the decree appellant Moru was dead. After examining the whole mater judgment and decree dated 1st May, 1997 was recalled. 8. It was thereafter that an application was filed by Soma Devi, who was ordered to be substituted in place of plaintiff. Ram Sahai being occupancy tenant, was not in dispute. After his death both his widows came into possession, is also admitted on behalf of the parties. By referring to the record, learned counsel for the defendants No.l to 3 was not in a position to show as to how the entry in favour of Durga, father of defendants No. 1 to 3, was made showing him as having been inducted as non-occupancy tenant over the land, particularly, so far share of Mori was concerned. 9. In this behalf, it may be appropriate to point out that entry could be changed only in accordance with law. And further creation of tenancy is a bilateral act. Thus, in order to establish their claim, defendants were required to plead and prove that the entries were made either with the consent of Smt. Mori or under the orders of a Court of competent jurisdiction. This was further necessary to be established by defendants 1 to 3 with a view to obtain benefit of presumption attached to the entires in revenue record, though rebuttable under Section 45 of the H.P. Lad Revenue Act. There is no such material on record. 10. Learned counsel for he defendants No.l to 3 stated that it was for the plaintiff to have rebutted the statutory presumption. Ordinarily, this plea should have been accepted, but for the reasons to be recorded hereinafter. It is being rejected. 11. As already observed, unless revenue entries are changed as per law, no benefit of presumption can be claimed by a litigate like defendants No. 1 to3. Here submission urged by Ms. Rama Mehta needs to be noted. According to her, there is evidence of payment of rent, proved on record by her clients. In this behalf she placed reliance on the statements of DWs., S/Sh. Here submission urged by Ms. Rama Mehta needs to be noted. According to her, there is evidence of payment of rent, proved on record by her clients. In this behalf she placed reliance on the statements of DWs., S/Sh. Nanak Chand DW-1, DW-2 Bakshi, DW-3 Jai Karan, DW-4 Krishan Lai, DW-5 Mohan Singh. 12. DW-5 is the land owner, under whom Ram Sahai was occupancy tenant, whose widows were Mori and Nihatu. According to this witness, l/3rd of crop used to be given as rent and thereafter it was reduced to 1/4. Ram Sahai died 44-45 years ago. Statement of this witness was recorded on 27.10.1986. He has stated that Durga Ram used to cultivate this land after the death of Ram Sahai and used to pay him and other land owners rent as l/4th of the crop. Now the land was under cultivation of his (Durgas) family. 13. So far this witness is concerned, he has a reason to state something against the plaintiff, he has been deprived of the land along with other land owners. So far statements of DWs 2,3 and 4 are concerned, no reliance placed on those, so far they being the witnesses of so called rent receipts. So far payment of rent by Durga to Mori plaintiff is concerned, when she was confronted with one such receipt, she has denied having thumb marked the same, on some of the receipts according to DWs, she had refused to thumb-mark. In the face of this evidence, it cannot be said that the defendants have been able to establish creation of tenancy in favour of their father Durga. 14. So far defendants 1 to 3 are concerned, once oral evidence was excluded, as a consequence of it statutory presumption under Section 45 of the H.P. Land Revenue Act also falls. Without there being any foundation for showing change of entries, describing Durga as non- occupancy tenant under Mori plaintiff and Nihatu, plea set up in that behalf has no basis as its very bottom is knocked. Admittedly , there is no order of a Court of competent jurisdiction to carry out such entry. 15. Without there being any foundation for showing change of entries, describing Durga as non- occupancy tenant under Mori plaintiff and Nihatu, plea set up in that behalf has no basis as its very bottom is knocked. Admittedly , there is no order of a Court of competent jurisdiction to carry out such entry. 15. Punjab and Haryana High Court whole dealing with Section 44 of the Punjab Land Revenue Act (which parimateria to Section 45 of H.P. Act, Supra), in Chanda v. Ram Chander, 1980 P.L.J. 561, was of the view that where possession of plaintiff is shown in earlier Jamabandi entries and later Khasra Girdawari entries casting a shadow on possession of plaintiff for no rhyme or reason, unsupported by any document, mutation or order of competent officer effecting change, then there is no option but to fall back on earlier Jamabandi entry and presumption of truth attaching to such Jamabandi entries remains unrebutted. 16. In Durga (Dead) & Ors. v. Milikhi Ram & Ors. 1969 Revenue Law Reporter, 122, Supreme Court held as under: "This appeal by special leave is directed against the judgment of the High Court of Punjab at Chandigarh (Grover, J.) dismissing the appeal of the appellants, Durga and others-hereinafter referred to as the defendants. The only point involved in this appeal is whether the High Court was right in holding that in view of the facts and circumstances of the case the presumption under Section 44 of the Punjab Land Revenue Act, 1887 had been rebutted. 2. The facts in brief are as follows: Milkhi Ram and others plaintiffs, respondents before us, filed a suit for possession of 52 kanals of land situate in village Ratewal on the ground that this land had been wrongly alloted to defendants 1 and 2 during consolidation proceedings on account shamlat land in respect of land bearing Khasra Nos. 2786 and 2806. The claim of the plaintiffs was that they along with dependent No.3 had 2/3rd share in the shamlat land in dispute pertaining to these khasra numbers. The trial Court dismissed the suit mainly on the ground that the suit was barred by time. The Senior Sub Judge, on appeal, allowed the appeal and granted the plaintiffs decree for joint possession of 219 kanals 14 marlas of land being equal in value to 7/12th of the Shamlat land appurtenant to the land comprised in previous khasra Nos. The trial Court dismissed the suit mainly on the ground that the suit was barred by time. The Senior Sub Judge, on appeal, allowed the appeal and granted the plaintiffs decree for joint possession of 219 kanals 14 marlas of land being equal in value to 7/12th of the Shamlat land appurtenant to the land comprised in previous khasra Nos. 2786 and 2806. The Senior Sub Judge held:- "The learned Subordinate Judge has taken the view that the entries in the Jamabandi of 1929-30 and the subsequent Jamabandi supersede the entry in the Jamabandi of 1925-26 and that the plaintiff cannot rely upon the Jamabandi of 1925-26 in support of their claim for the shamlat land in question. I cannot agree with him on this point. It is in evidence that the alteration in the entries was not based on any order passed by the revenue authority. No mutation for deleting the names of the plaintiffs was ever entered or attested by any revenue authorities. It is clear that it was by mistake that Durga and Sidhu alone were entered as entitled to the shamlat in question. I am of clear opinion that in these circumstances the entry in the Jamabandi for the year 1925-26 holds good and the entries in the subsequent Jamabandi made by mistake do not carry any weight." 3. Relying on Shri Raja Durga Singh of Solan v. Tholu, it was urged before the High Court, as before us, that the lower appellate court had wrongly relied on the earlier revenue entries placing the burden on the defendants whose names appeared in the later entries, to rebut the presumption. This court observed in that case as follows:- "It was urged before us that there are prior entries which are in conflict with those on which the learned District Judge has relied. It is sufficient to say that where there is such a conflict. It is the later entry which must prevail. This court observed in that case as follows:- "It was urged before us that there are prior entries which are in conflict with those on which the learned District Judge has relied. It is sufficient to say that where there is such a conflict. It is the later entry which must prevail. Indeed from the laughage of section 44 itself it follows that where a new entry is substituted for an old one it is that new entry which will take the place of the old one and will be entitled to the presumption of correctness until and unless it is established to be wrong or substituted by another entry." Grover, J. observed as follows :- "It is clear from the pedigree-table set out in its judgment that Mathar Mai had three sons Jiwan, Amin Chand and Relu. Durga and Sidhu are the descendants of Jiwan whereas the plaintiff and defendant No.3 are the descendants of Amin chand and Relu. Now, in the entries prior to 1929-30 each one of the descendants of the three sons of Mathar Mai had been shown to have l/3rd share and without any mutation the entries were changes in 1929-30. Admittedly, there is no order of the revenue authorities showing how the change was made. Thus although the presumption would be in favour of the later entries but that presumption was a rebuttable one and it would stand rebutted by the fact that the alteration in the entries in 1929-30 was made unauthorisedly or mistakenly, there being no material to justify the change of entries." Grover, J. distinguished Shri Raja Durga Singh of Solan v. Tholu thus: "There is nothing to indicate that in the case decided by their Lordships such was the position. Moreover, the decision in that case proceeded largely on the finding of fact arrived at by the District Judge on a consideration of the evidence being not open to interference in second appeal. The finding in the present case of the lower appellate Court is also based on evidence from which it has been inferred that the later entries are not the correct ones." We agree with the observations of Grover, J. 4. The learned counsel for the appellant-defendants further contended that they had been in possession for a long time. The finding in the present case of the lower appellate Court is also based on evidence from which it has been inferred that the later entries are not the correct ones." We agree with the observations of Grover, J. 4. The learned counsel for the appellant-defendants further contended that they had been in possession for a long time. But this was not the basis of the defence in the written statement filed by them and no question of adverse possession can be allowed to be raised at this stage. 5. In the result the appeal fails and is dismissed with costs. Appeal dismissed." 17. Ordinarily, while considering an appeal under Section 100 of the Code of Civil Procedure this Court would not have gone into the evidence. However, on examination of the entire evidence, both oral and documentary, conclusions arrived at by the learned District Judge cannot be sustained. In fact, it is a case of no evidence so far creation of tenancy regarding land of Mori plaintiff was concerned. Thus findings to the contrary cannot be sustained in any circumstances. It is for this reason that the evidence have been briefly referred to. 18. Learned Appellate court below fell into error by ignoring the fact that Durga was the son-in-law of both Moru and Nihatu. In the absence of their (?) being any material, to establish teancy in accordance with law, his possession at best could be termed as permissive as both the ladies were his mothers-in-law. As such, the impugned decision by the appellate court below could not have been arrived at on the basis of evidence and other material on record. 19. No other ground is urged. 20. For the aforesaid reasons, this appeal is allowed and as a consequence of it, question of law above referred is answered in favour of the plaintiff/appellant and against the defendants/respondents No.l to 3. Thus, Judgment and decree passed by the learned District Judge, Mandi, Kullu and Lauhal-Spiti district, at Mandi, in civil Appeal No.12 of 1987, decided on 11.4.1989, is hereby set-aside and as a consequence of it. Judgment and decree passed by Sub Judge 1st class, Sarkaghat, Distt, Mandi in Civil Suit No.64 of 1985 decided on 16.12.1986 is hereby restored. Costs on the parties.